M/S. Laxmi Chemfood Products Pvt. ... vs M/S. Calibre Chemicals Private ...
2021 Latest Caselaw 4534 Bom

                                                                   15.175.20 cra.doc

ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION
                    CIVIL REVISION APPLICATION NO. 175 OF 2020

      M/s. Laxmi Chemfood Products. Ltd.                          ....Applicant
      Thr. Authorised Mr. Dharamveer Harilal Prajapati

              V/s.

      M/s. Calibre Chemicals Private Ltd.                         .....Respondent

      Mr. Sushil Kumar Tiwari for the Applicant
      Mr. Ram Kutwal for Respondent

                               CORAM :   NITIN W. SAMBRE, J.

                               DATE:     MARCH 11, 2021.

      P.C.:

      1]      Heard. Petitioner took out summons for Judgment invoking

provisions of Order XXXVII Rule 3 (5) of Code of Civil Procedure, 1908

unconditional leave to defend. Vide order impugned prayer is allowed

subject to deposit of amount of Rs. 17,76,840/-.

2] The submissions of Mr. Tiwari, learned counsel for the Petiitoner-

Defendant are, entire amount in the Suit claim is directed to be

deposited without looking into triable issues which are sought to be

canvassed by the Petitioner. According to him, case of the Petitioner

that of non-receipt of the goods and the invoices not confrmed by the

15.175.20 cra.doc

Respondent-Plaintiff should have prevailed in the matter of grant of

unconditional leave to defend. Apart from above, it is claimed that

Petitioner-Defendant Company is in huge losses and will not sustain

the burden of deposit of the amount as ordered.

3] Counsel for the Respondent has supported the order impugned.

4] Trial Court while granting leave to defend vide order impugned

has directed the Petitioner-Defendant to deposit amount of Rs.

17,76,840/-. Said order is based on business transactions between the

parties to the Suit. The indent sent to the Respondent in February

2017 assuring to clear all the dues by making monthly payments of Rs.

6,00,000/- is taken to be admission of the liability by the Petitioner.

5] Apart from above, admission of supply of goods worth Rs.

1,11,92,847/-, payment of Rs. 99,62,303/- and the balance payment to

be received is also taken into account. Four invoices which are placed

on record by the Respondent-Plaintiff are relied on for directing the

Petitioner to deposit the amount so as to grant permission for leave to

defend.

15.175.20 cra.doc

6] In the aforesaid background, in my opinion, it cannot be inferred

that Petitioner has demonstrated that case of strong triable issues is

made out so as to warrant this Court or the Court below to grant

unconditional leave to defend. As claim of the Respondent-Plaintiff is

based on documentary evidence and admission of liability, no case is

made out for consideration.

7] The contention that Petitioner is in fnancial diffculty or entire

amount of claim is directed to be deposited and nothing remains to be

adjudicated, need not warrant any consideration as same cannot be an

issue which is germain for considering the prayer for grant of

unconditional leave to defend.

8] No case for interference in extraordinary jurisdiction is made out.

Petition as such fails, stands dismissed.

[NITIN W. SAMBRE, J.]